A Sham Compromise on Torture

Allow me to rant for a few paragraphs on the media lovefest with Sen. John McCain (R-Ariz.). John McCain is a good man who I respect. I certainly think he would have been a better president these last six years than President Bush and he's certainly better than many of the other people Republicans have to offer. But he is not some knight in shining armor; not only is he very solidly conservative on most issues, he is, in the end, a politician. That doesn't make him a bad person, but it does mean that he does not deserve immunity from criticism due to a carefully-cultivated image as a "maverick". And just because he has a knack for forging compromises doesn't mean those compromises are inherently desirable.

For much of the Washington punditry, any "compromise" is Solomonic in its wisdom, bestowed upon weary, American subjects by our saintly "moderates" and "mavericks" in Congress. This facile view of policymaking relies on the implicit assumption that the "right" answer is always halfway between points A and B.

Let me be clear - I am not arguing against moderation. I am not arguing against pragmatically cutting a deal. What I am against are compromises that cede ground on core principles such as human rights. And what I am also against are compromises that claim to be upholding fairness and common-sense but which in fact grant one side 90% of what they seek and 10% of what the other side seeks.

The bold "compromise" on torture that was announced yesterday by Sens. John McCain, Lindsey Graham, and John Warner fit both those criteria. While the Republican moderates' heart may have been in the right place, the end result of their bargaining is a near-total capitulation on torture; while it is worded to sound high-minded, it leaves near-total discretion to the White House.

And thankfully, in spite of their usual fawning, much of the mainstream press is seeing it in the same way.

The NY Times: A Bad Bargain

Published: September 22,
2006

Here is a way to measure how seriously President Bush was willing to compromise on the military tribunals bill: Less than an hour after an agreement was announced yesterday with three leading Republican senators, the White House was already laying a path to wiggle out of its one real concession.

About the only thing that Senators John Warner, John McCain and Lindsey Graham had to show for their defiance was Mr. Bush’s agreement to drop his insistence on allowing prosecutors of suspected terrorists to introduce classified evidence kept secret from the defendant. The White House agreed to abide by the rules of courts-martial, which bar secret evidence. (Although the administration’s supporters continually claim this means giving classified information to terrorists, the rules actually provide for reviewing, editing and summarizing classified material. Evidence that cannot be safely declassified cannot be introduced.)

This is a critical point. As Senator Graham keeps noting, the United States would never stand for any other country’s convicting an American citizen with undisclosed, secret evidence. So it seemed like a significant concession — until Stephen Hadley, the national security adviser, briefed reporters yesterday evening. He said that while the White House wants to honor this deal, the chairman of the House Armed Services Committee, Duncan Hunter, still wants to permit secret evidence and should certainly have his say. To accept this spin requires believing that Mr. Hunter, who railroaded Mr. Bush’s original bill through his committee, is going to take any action not blessed by the White House.

On other issues, the three rebel senators achieved only modest improvements on the White House’s original positions. They wanted to bar evidence obtained through coercion. Now, they have agreed to allow it if a judge finds it reliable (which coerced evidence hardly can be) and relevant to guilt or innocence. The way coercion is measured in the bill, even those protections would not apply to the prisoners at Guantánamo Bay.

The deal does next to nothing to stop the president from reinterpreting the Geneva Conventions. While the White House agreed to a list of “grave breaches” of the conventions that could be prosecuted as war crimes, it stipulated that the president could decide on his own what actions might be a lesser breach of the Geneva Conventions and what interrogation techniques he considered permissible. It’s not clear how much the public will ultimately learn about those decisions. They will be contained in an executive order that is supposed to be made public, but Mr. Hadley reiterated that specific interrogation techniques will remain secret.

Georgetown Law Professor, Marty Lederman also harshly criticized the so-called "compromise" from his blog, Balkinization. The bill was also criticized by the Washington Post.

Simply put, the Republican moderates in the Senate caved. Their bill essentially relies on the goodwill of the administration and stops well short of the high-minded goals they set out to achieve. Perhaps an anonymous Bush Administration source put it best:

A senior administration official, who spoke on the condition of anonymity, said in an interview that Bush essentially got what he asked for in a different formulation that allows both sides to maintain that their concerns were addressed. "We kind of take the scenic route, but we get there," the official said.

Sadly, the Democrats largely ceded this issue to the Republicans and have uttered nary a peep over the bill. The Democrats MUST confront this and call it out for what it is. Let's hope that a Democratic Senate and/or House will aggressively confront the White House on this. God knows how effective those Republican moderates have been on this.